CRA accepts but restricts Mullings
The ability of the taxpayer in Mullings to claim the disability tax credit for her young child, who suffered from an inability to digest a common amino acid (“Phe”), turned on whether she was spending at least 14 hours per week on therapy, which was defined in s. 118.3(1.1)(d) to exclude “time spent on dietary…restrictions or regimes.”
Jorré J found that controlling the child’s Phe levels (so as to prevent severe brain damage) required that medical formula food be given in precise and timed doses, which was “no different from administering any other prescription medication,” and that “measuring and controlling Phe intake is properly characterized as administration of the therapy and not as control of X’s diet” – so that the time so spent counted towards the 14 hours. This “measuring” included significant time devoted to obtaining blood level checks by labs. The taxpayer got the credit.
CRA appears to have accepted the Mullings decision (Hughes is similar), but noted that it should not be inferred that the decision has established that time spent for lab tests should be included in the time spent administering therapy as described in s. 118.3(1)(d), as in other cases the lab testing might very well have less of a direct connection with dealing with the individual’s impairment.